J A3700205 2006 PA Super 160 COMMONWEALTH OF PENNSYLVANIA by abstraks

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									J. A37002/05
                              2006 PA Super 160
COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                         Appellant        :
                                          :
                    v.                    : No. 1877 Western District Appeal 2004
                                          :
MARK S. WORTHY                            :


           Appeal from the Suppression Order, October 19, 2004,
             in the Court of Common Pleas of Allegheny County
                   Criminal Division at No. CC 2002-12387


BEFORE: FORD ELLIOTT, TODD, AND POPOVICH, JJ.


OPINION BY FORD ELLIOTT, J.:                            Filed: June 29, 2006

¶1    In this appeal, the Commonwealth challenges the October 19, 2004

order of the Court of Common Pleas of Allegheny County granting Mark S.

Worthy’s (“Worthy”) motion to suppress evidence obtained after his vehicle

was stopped at a sobriety checkpoint roadblock.1 The trial court held that

the checkpoint at issue failed to adhere to the Tarbert-Blouse criteria.2 We

agree and affirm.

¶2    When we review the Commonwealth’s appeal from the decision of the

suppression court, “[we] consider only the evidence from the defendant’s

witnesses together with the evidence of the prosecution that, when read in


1
  This appeal is permissible as the Commonwealth has certified in good faith that
the suppression order submitted for our review substantially handicaps the
prosecution and the appeal is not intended for delay purposes. Pa.R.A.P. 311(d);
Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).
2
 Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987) (plurality);
Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992).
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the context of the entire record, remains uncontradicted.” Commonwealth

v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 880-81 (1998).             “When the

evidence supports the suppression court’s findings of fact . . . , this Court

may reverse only when the legal conclusions drawn from those facts are

erroneous.”    Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.

2000).

¶3   The Commonwealth presents the following issue for our review:

              Did the suppression court err in concluding that the
              police operating the DUI sobriety checkpoint
              pursuant to 75 Pa.C.S.A. §6308(b), which stopped
              every vehicle that approached, acted improperly in
              opening the checkpoint at times when traffic backed-
              up to allow motorists to pass through the checkpoint
              before resuming the checkpoint operations of
              stopping every vehicle?

Commonwealth’s brief at 4.

¶4   Worthy was charged with driving under the influence of alcohol,

§§ 3731 (a)(1) and (a)(4)(l), after he was stopped during a sobriety

checkpoint on May 25, 2002 in Monroeville, Pennsylvania. Worthy filed an

omnibus pre-trial motion and a motion to dismiss; he claimed that the

roadblock conducted on May 24, 2002 through May 25, 2002 was

unconstitutional and, therefore, any evidence obtained from the stop must

be suppressed.

¶5   A   suppression     hearing   was   held   on   April   13,   2004    wherein

Sergeant Ronald H. Harvey (“Sergeant Harvey”) testified that he was the

checkpoint coordinator for the regulatory roadblock in question.          (Notes of


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testimony, 4/13/04 at 4.) Sergeant Harvey met with the administration of

the police department as to where, when, and why the checkpoint would be

held. He presented information to show the history of the roadway as far as

the number of accidents and DUI arrests that had occurred in that area.

(Id.) The sobriety checkpoint was approved by Assistant Chief Doug Cole;

the following memorandum was entered into evidence:

            You are hereby authorized to post notice and
            arrange for officers to work a sobriety check point
            the night of the 24th of May, 2002. The check point
            details shall start at 2300 hours, the 24th of May,
            2002, and conclude no later than 0400 hours on the
            25th of May, 2002. As per our conversation on the
            15th of May, 2002, our review of the state accident
            statistics regarding drinking and driving accidents
            and our department records showing the number of
            traffic stops resulting in driving under the influence
            arrests, you are authorized to set up a check point
            on Route 22 westbound at Roomful Express,
            3651 William Penn Highway in Monroeville, PA. If
            circumstances would prevent you from using that
            primary location, you are authorized to move to
            2420 Moss Side Boulevard, State Route 48 in
            Monroeville.

Id. at 6.

¶6    Sergeant    Harvey     explained   that   the   checkpoint     began   at

approximately 11:40 p.m. (Id. at 7.) The officer involved in the checkpoint

posted large orange signs several hundred feet up the road which were lit by

traffic flares and lights.   (Id. at 7-8.)   The signs advised drivers of an

imminent checkpoint ahead.       He also stated that every vehicle, without

exception, was to be stopped. (Id. at 8.) However, “when the traffic got



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heavy and there was an unreasonable delay, we opened the checkpoint and

let all the traffic flow.   At that point, no traffic was checked.”        (Id.)

Sergeant Harvey stated that there were three different occasions where he

opened the checkpoint. (Id. at 9.)

¶7    Following the hearing, the court ordered briefs from both parties.

Argument on the briefs was held during an October 6, 2004 hearing. Based

on the evidence adduced from the hearing, the trial court concluded that the

prosecution failed to satisfy its burden of proving that the sobriety

checkpoint was constitutional; on October 19, 2004, the court filed an order

granting Worthy’s suppression motion.        The Commonwealth filed a timely

appeal along with the Rule 1925(b) statement ordered by the court.

¶8    It is well settled that the stopping of an automobile and the detention

of its occupants is a seizure subject to constitutional restraints under the

United   States   and   Pennsylvania   Constitutions.3     Commonwealth v.

Fioretti, 538 A.2d 570 (Pa.Super. 1988).         “However, if the police follow

specified   procedures,     systematic,      non-discriminatory,   non-arbitrary

roadblocks for the purpose of insuring safety on the highways have been

deemed constitutional.”     Commonwealth v. Ziegelmeier, 685 A.2d 559,

561 (Pa.Super. 1996) (citation omitted).          The authority to conduct a




3
 The Fourth Amendment to the United States Constitution and Article 1, § 8 of the
Pennsylvania Constitution protect against unreasonable searches and seizures.


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systematic roadblock in Pennsylvania is statutorily authorized. 75 Pa.C.S.A.

§ 6308(b).4

¶9    In Tarbert, supra, a plurality of our supreme court set forth

guidelines    to   insure   that   an   investigative    roadblock    is     acceptable.

Specifically, our supreme court indicated the following:

              First, the very decision to hold a drunk-driver
              roadblock, as well as the decision as to its time and
              place, should be matters reserved for prior
              administrative    approval,    thus    removing    the
              determination of those matters from the discretion of
              police officers in the field. In this connection it is
              essential that the route selected for the roadblock be
              one which, based on local experience, is likely to be
              traveled by intoxicated drivers. The time of the
              roadblock should be governed by the same
              consideration. Additionally, the question of which
              vehicles to stop at the roadblock should not be left to
              the unfettered discretion of police officers at the
              scene, but instead should be in accordance with
              objective standards prefixed by administrative
              decision.

Id. (emphasis added). See Blouse, supra at 173, 611 A.2d at 1180 (“We

now adopt the guidelines set forth in Tarbert, because they achieve the goal



4
              Whenever a police officer is engaged in a systematic
              program of checking vehicles or drivers or has reasonable
              suspicion that a violation of this title is occurring or has
              occurred, he may stop a vehicle, upon request or signal,
              for the purpose of checking the vehicle’s registration,
              proof of financial responsibility, vehicle identification
              number or engine number or the driver’s license, or to
              secure such other information as the officer may
              reasonably believe to be necessary to enforce the
              provisions of this title.

75 Pa.C.S.A. § 6308(b).


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of assuring that an individual’s reasonable expectation of privacy is not

subject to arbitrary invasions solely at the unfettered discretion of officers in

the field.”).   See also Ziegelmeier, 685 A.2d at 562, quoting Tarbert,

supra. The Blouse court also held that “[s]ubstantial compliance with the

guidelines is all that is required to reduce the intrusiveness of the search to

a constitutionally acceptable level.” Blouse, supra.

¶ 10 With these particulars in mind, we now focus our attention on the

instant checkpoint to determine if it was conducted in a constitutional

manner. Again, the trial court found the checkpoint did not comply with the

fifth guideline; rather, that the question of which vehicles to stop was not

established by objective standards prefixed by administrative decision.

(Trial court opinion, 2/4/05 at 3.) We agree.

¶ 11 At the suppression hearing, testimony was presented concerning the

manner in which the police conducted the roadblock.          The memorandum

which authorized the plans and procedure for the checkpoint was entered

into evidence.    The testimony presented revealed that each vehicle was

stopped “[e]xcept for when the traffic got heavy and there was an

unreasonable delay, we opened the check point and let all the traffic flow.

At that point, no traffic was checked.” (Notes of testimony, 4/13/04 at 8.)

The checkpoint was opened at three different times during its operation.

(Id. at 9.)




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¶ 12 We agree with the trial court that “the guidelines of Tarbert-Blouse

were not complied with as there was no prefixed administrative decision with

objective criteria describing when to suspend the checkpoint to allow traffic

to flow through.”     (Trial court opinion, 2/4/05 at 4.)   The memorandum

authorizing this checkpoint made no mention of when the checkpoint could

be temporarily stopped due to traffic flow. Additionally, no testimony was

presented as to how Sergeant Harvey came to the conclusion that the traffic

was backed-up to the point that the operation needed to be suspended. For

instance, Sergeant Harvey did not testify as to how many cars were stopped

on the roadway at the times he suspended the checkpoint.           Nor did he

explain the criteria that was used in making the decision to begin checking

vehicles again.     No testimony was presented to indicate that the traffic

stoppage posed safety problems for the citizens or officer involved.      See,

e.g., Tarbert, supra at 290, 535 A.2d at 1041.

¶ 13 Therefore, we find that the record supports the trial court’s conclusion

that the checkpoint was controlled by the arbitrary discretion of the officers

working that evening rather than established procedures governing the

operation of the roadblock.     Again, “[a] central concern in balancing the

opposing interests is protecting the individual from arbitrary invasions at the

unfettered discretion of officers in the field.”   Blouse, supra at 170, 611

A.2d at 1178.     Sergeant Harvey had “the unfettered discretion of when to

suspend the checkpoint and when to resume the checkpoint.” (Id. at 4-5.)



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Such arbitrary decisions can be curtailed significantly by the institution of a

safeguard; the very decision of how many cars are backed-up should be

reserved for prior administrative approval, thus removing the determination

from the discretion of the police officers in the field. See Tarbert, supra at

293, 535 A.2d at 1043.

¶ 14 The Commonwealth argues that the police did not act with “unfettered

discretion” when the officers temporarily stopped the operation of the

checkpoint when traffic backed-up and that every vehicle was stopped while

the checkpoint was operating. (Appellant’s brief at 11, 12, 16.) Rather, the

Commonwealth claims that the temporary nature of the suspended

operation of the checkpoint was to alleviate delay in compliance with the

first guideline -- that the stop be momentary in nature. “Authority to make

on the scene decisions to temporarily suspend operations is a necessary

function of the police to effectuate a properly run checkpoint.” (Id. at 18.)

The Commonwealth, however, is unable to refer this court to any case or

administrative authority supporting this proposition.

¶ 15 The Commonwealth asserts that the officers substantially complied

with the requirements.       Relying primarily on Fioretti, supra, and

Commonwealth        v.   Pacek,   691   A.2d   466      (Pa.Super.   1997),   the

Commonwealth maintains that our courts have allowed officers discretion

with regard to temporary checkpoint shutdowns for delay reasons. The facts

in Pacek involved a checkpoint that was stopped three or four times when



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the traffic became “backed-up” and restarted when conditions permitted.

Pacek, supra at 468 n.2.          The main issue in Pacek, however, concerned

notice and the ability of the police to operate the checkpoint without allowing

motorists to avoid it.     Although a footnote in the case indicates that the

checkpoint was stopped and started three times, there was no indication

that this was not previously authorized before the checkpoint began.

¶ 16 The Commonwealth also cites to Fioretti, supra, and suggests that

this court approved the proper discretion of police “to discontinue the

checkpoint   if   the   traffic   backed    up.”   Fioretti,    however,   is    easily

distinguishable as the police conducted their actions in accordance to a

written procedure approved by the chief of police.             Id. at 576-577.     The

written procedure provided the officers with the requirement to stop all

vehicles heading east, with discretion to decide whether to discontinue the

checkpoint if traffic backed-up. There was no indication in Fioretti that the

checkpoint was stopped and started; rather, the court indicated that “all cars

were stopped, thus removing discretion from the checkpoint officers

concerning whom they would stop.” Id. at 577.

¶ 17 Here, the Commonwealth failed to establish that there was a prefixed,

objective standard for suspending and resuming the sobriety checkpoint on

the night in question. We find that the trial court properly suppressed the

evidence.




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¶ 18 Order affirmed.

¶ 19 Todd, J. files a Concurring Statement.




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COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                  Appellant              :          PENNSYLVANIA
                                         :
               v.                        :
                                         :
MARK S. WORTHY,                          :
                        Appellee         :         No. 1877 WDA 2004

          Appeal from the Suppression Order of October 19, 2004,
             In the Court of Common Pleas, Criminal Division
                   Allegheny County, No. CC 2002-12387

BEFORE: FORD ELLIOTT, TODD, and POPOVICH, JJ.

CONCURRING STATEMENT BY TODD, J.:

¶1    I join the majority opinion because, under the Tarbert-Blouse

guidelines, I agree the Commonwealth failed to demonstrate that the

decisions regarding which vehicles to stop were “in accordance with

objective standards prefixed by administrative decision” and not left to the

“unfettered discretion” of the police officers at the scene. Commonwealth

v. Blouse, 531 Pa. 167, 172, 611 A.2d 1177, 1180             (1992) (quoting

Commonwealth v. Tarbert, 517 Pa. 277, 293, 535 A.2d 1035, 1043

(1987) (plurality)).   I do so reluctantly, however, because I observe that

there is no suggestion in the record that the officer in this case, in

periodically alleviating traffic congestion by temporarily suspending the

checkpoint, was doing anything other than attempting to fulfill his duty to

ensure that traffic flow was managed as safely and as efficiently as possible.
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¶2    Nevertheless, the Tarbert-Blouse guidelines are in place because a

constitutional right is at stake. The guidelines exist not because we presume

police officers are incapable of properly exercising discretion at checkpoints

such at the one at issue in this case, but because the limited exception to

the constitutional requirement of probable cause to effect a seizure,

permitted by Tarbert and Blouse, is so extraordinary that it may be

allowed only under the most exacting standards.      The guidelines “achieve

the goal of assuring that an individual's reasonable expectation of privacy is

not subject to arbitrary invasions solely at the unfettered discretion of

officers in the field.” Blouse, 531 Pa. at 173, 611 A.2d at 1180. Thus, the

question of which vehicles to stop — which question necessarily includes the

issue of when to temporarily suspend stopping vehicles for whatever reason

— must conform to prefixed, objective standards.      Because I agree those

standards were not met in this case, I join the majority.




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